A Closer Look at the Aftermath of the Virginia/Vermont Lesbian Mother Dispute

First off, my apologies. On top of the usual chaos of travel/vacation my internet access has been on the fritz. I’ve started in on comments three times so far only to have things crash before I hit that “post reply” button. Very frustrating for me and perhaps for all of you who are wondering if I still care. The answer is that I do care and that shortly I should return to the land of reliable internet (though there will still be disruption with a last round of company/social activity.) Sorry for all this but it is, after all, summer.

Now–on to a post. I’ve written a number of times about the case arising out of dueling court actions in Vermont and Virginia. This past Sunday (I think it was) the NYT had an extensive article on the background and aftermath of the litigation in that case.

It’s a sad story about a lesbian couple who began a family together. The relationship between the women didn’t last. One woman (Lisa Miller, who is clearly a legal mother having given birth to the child) denied that the other woman (Janet Jenkins) was a legal parent to the child, Isabella Miller-Jenkins. In the end Miller’s arguments failed (the reasons are complicated but you can certainly read about them) and it is now agreed by all courts that Jenkins is also a legal mother. Given that finding, Jenkins is clearly entitled to spend some time with her child. But Miller couldn’t accept that and so, as the NYT article describes, she eventually fled the country taking Isabella with her.

There’s one level on which this is a rather ordinary story. Indeed, it’s a very similar pattern to the Sean Goldman case. There, too, one legal parent took a child abroad in an effort to disrupt the child’s relationship with the other legal parent. In both cases that action is unjustifiable.

There is an important difference, of course. In general, I think everyone accepts David Goldman’s status as legal parent because we assume (I don’t actually think we know) that it is grounded in biology. By contrast, we all know that Janet Jenkins legal status is not grounded in biology–she is not biologically related to Isabella. Her legal status is grounded in her relationship with Lisa Miller. For some of you, this is an unacceptable basis for legal recognition.

This leads me to two observations. First, grounding legal parenthood based on relationship between adults is not some new-fangled way to form families. It’s a practice that has quite a substantial pedigree. I don’t mean that this should place it beyond debate, but it’s a point to consider. The extension of legal recognition to same-sex couples may be new, but to many (me included) that’s a matter of equity and fairness.

Second, there really are two separate issues here. You can think about whether or not you’d extend the presumption as the courts here did. That’s one conversation–and one I would set aside for the moment. (There’s plenty on the blog on this and will surely be more in the future.) The second issue is what one should do once you have that finding of legal parenthood. If you accept (even if only for purposes of thinking through the second issue) Jenkins’ legal status as a parent, then is her case in any way distinguishable from Goldman’s? I don’t think it is.

There’s much more to say here, really, but I’m going to stop before I lose everything to some technological failure. I commend to you all this post by Professor Nancy Polikoff who explores the question of when one should violated court orders. And I’ll close with one last observation.

There’s a different way of thinking about the difference between the Miller-Jenkins case and the Goldman case: Miller-Jenkins is about lesbian parents and (for many) Goldman was a case about father’s rights. Both of these topics have political overtones. As Miller has renounced lesbianism, she has been able to gain substantial material support from conservative Christians. A similar conservative impulse often plays into support for claims about father’s rights. Both views are, I think, based on a belief that there is a natural order to things–each child has one mother and one father, defined as the people who provided the egg and the sperm–and as nature (or perhaps God) created things, so they must be.

40 responses to “A Closer Look at the Aftermath of the Virginia/Vermont Lesbian Mother Dispute”

Horrible outcome for the child, but I don’t really think the other outcome (giving her to the mother’s former partner she hadn’t lived with since she was a baby) would have been all that good either. Because so many years went by, the partner was a stranger both biologically and psychologically. But I don’t believe preserving a relationship with a legal parent no matter what the cost will be best 100% of the time, even if the law has to say it is. Some kids probably are better off with only one parent in a situation like this.

I know I’m very late in responding to this comment, but the point you raise is very important. I’ve written before (and I’m sure I’ll write again) about how problematic the passage of time is in custody cases. Children live in the real world and while court cases take their time, relationships are formed or wither. What do you do about that? You can wish that court’s decided things once and for all at the get go, but we don’t have it set up that way, and given the need for appellate review, it wouldn’t be easy to arrive at that goal. I suppose one could start by fast-tracking custody cases. But we generally do not.

That said, you do get cases like this–where one party has acted wrongly (Miller) but the reality is that the other party’s relationship with the child has doubtless deteriorated (Jenkins). You could see the same thing in the Sean Goldman case.

There’s another factor that comes into play here. As a general matter, oiur legal system cannot reward bad behavior–like defiance of a court order, say. It’s generally unacceptable to have a rule that if a person breaks the rules for long enough, then it become okay to break the rules. This is a overarching proposition, not limited to custody cases. And it tends to override everything–including individualized concerns about the best interests of a child. So typically if/when the child and fugitive parent are discovered, the child is taken away from the fugitive. With luck all this is done with some sensitivity. One can at least hope.

I actually do think there is one major difference between this and the Goldman case, though. (at least at the point the Goldman case started gaining a lot of attention, which was after the mother died). This case is (legally) parent vs parent. The Goldman case was parent vs stepparent & relatives. The mother was dead and there was only one legal parent. Had the mother lived, it’s possible Brazil would have continued to refuse to return the child, and the outcome may have been very different. Looking at other similar cases in Brazil where both parents were alive, the children are rarely sent back to where they came from.

I think it’s unfortunate that father’s rights are thought to be strictly the province of conservative christians.
I suppose that what is often known as “fathers rights” is often associated with fathers asserting rights superior to that of mothers rights.
But the idea that for fathers’ to have rights at all is only for a bunch of extremists? I don’t agree with that at all.

“Support women’s bodily autonomy. On a political level, of course, one should fight pro-life initiatives, attempts to de-fund Planned Parenthood, forced sterilization efforts, etc. On a personal level, of course, it’s almost more important. If your partner gets pregnant, it’s up to her whether to have an abortion, give the child up for adoption, or raise the kid. Her body, her rules.”

This is an example of what Julie is saying- for a father to have ANY rights at all is perceived by some as being a backwards misogynist.
This is not what I mean when I say feminism- feminism for me means equality!

Luckily many commenters called him out on his mistake. I myself wrote a comment advising prospective fathers to consult with an attorney.

I believe she was only referring to the part about adoption. I agree that it’s disgusting to say a man should have no say over his already born child, but I don’t think men should have any say about abortions.

Well, one problem is that the mother (if she is mad at the father, which could be justified or completely unreasonable and unjustified) is that she could lie that the father is unknown. So there needs to be some incentive not to lie and so I think if the father then finds out and comes forward he should be able to prevent the adoption from being finalized. If the father isn’t involved in the placement it should have to be a risk that potential adopters take. If they want the guarantee, then adopt a child where both parents will sign.

Exactly Rebecca. If he does not give his consent then they should be aware that they are proceeding at risk without his consent permanently. I’ve helped too many families torn apart by selfish women who took their kids away from their fathers and simply named another person as parent and its just plain wrong.

It should not be viewed as parental rights being violated it should be viewed as interfering with a person’s ability to meet the needs of their under age offspring. It should be a crime to aid someone in attempting to skirt their obligations as a parent and it should be a crime to try and stop them from taking care of their child. Adoption should only occur when the parent does not want to care for their child or is incapable of it. In fact its not good enough that they simply not want to take care of their kid they should always have some level of parental duty certainly enough that they must always aknowlege the child is theres on formal records and to members of their family and I think inheritance and child support should not be out of the picture either when the parent is capable of helping out. They can loose some of the authority without being absolved of all obligations.

Marilynn, I believe that’s rather rare. You would tend to get these type of cases due to the nature of your work. But if a woman got pregnant in a relationship with a known man, even a brief relationship, odds are that the man knows about it. As for abusive men, women stay in relationships with abusive men for lengthy periods of time, odds are that even the abusive man would know about it.
Not saying that it never happens, but that it’s relatively rare.

Rare or not shouldn’t the law side with the continued, uninterrupted obligation of the parties who reproduced to create the child? Shouldn’t a child’s first and foremost right be to depend upon those two individuals for support? Sure someone else can come along and do the job if the parents are nowhere to be found, but if they are ever found, do we just pretend they never had the duty to begin with? Is their debt to their offspring simply forgiven and they owe their child nothing? If the parent never transferred his or her obligations in a court of law that parent should be viewed as having abandoned the child it should remain a crime even if the child is adopted. And if it turns out the parent was absent because the child was hidden from him or her then should the other people caring for the child get to stop the parent from trying to take care of their offspring? I mean sure there would be details to work out but seriously – to just call the parent a stranger is interfering with their performance I think

I don’t beleive it creating laws which are nonenforceable. If no one but the mother knows that she is pregnant by a certain man, the law would be unenforceable. Also we have already argued abouot the fact that in some cases, enforcing it would not be desirable, example rape.

Then the question is, till what point can the father assert his rights to gain custody of his child? Suppose he finds out two years, or five years after the adoption has gone through. Should he be able to reverse the adoption and take custody of the child?

Ki
Then do you take the position that there always is a father or that father is something the government or the mother assigns? I take the view that everyone has a mother and father and those people should be identified, for the record, for vital statistics purposes, for health purposes, because the truth is the truth and our government should not pick and choose which truths are fit to print and which are not. I believe that if a man has offspring he needs to be recorded as his offspring’s father and held accountable to the child and to the public in general for taking care of his offspring. That is not such an absurd suggestion really. Sometimes truth is, the father is going to be a class A jerk or a bonified convictable criminal. Do those guys just not have to take care of their offspring? Whose job is it going to be to pull the other 50%? Imagine a situation where the woman does keep the kid and the guy is convicted of Rape and sentenced to jail. Let’s say the Father father dies while the Father is doing time and he inherits some money or proptery…shouldn’t the kid get that money? I mean why not? It’s not his fault his Dad is a criminal. Why should his father’s crimes mean the child does not deserve his financial support. If he is not listed as the legal father the child gets nothing, zip, zilch. The child will never have access to information on the Father or other relatives the way they would had the Father been listed on the birth record. Is that fair to the child.

When we are talking about not listing a rapist as a father its more of a sensibility and decency thing so that the woman can put it all behind her and not be reminded…etc etc. The idea being ‘some things are better left unsaid’. That some facts are ok to conceal and that not everyone needs to know the truth if its unpleasant. Well, as far as I know birth records are the only official government document where the facts can be known and just omitted or known to be wrong yet not be corrected. Generally we put the truth down whether we like it or not otherwise its like keeping two sets of books. What’s the point when we have legal mechanisms where a Father can be listed accurately as the father but then loose custody if he is convicted of a crime? There is a wide array of options from supervised visitation with him or his family to absolutely no contact at all – nothing zip zilch nada – and that can be written down and enforced because he is the father. Being the father is a state of reality, he has offspring and there is no sense pretending he does not. The grown up way to handle unpleasant truths is to record them and then come up with a game plan for protecting the child without the child actually loosing his or her rights to things he or she may wish to access in the future. The child may wish to pursue relationships with his or her siblings and its just not fair that the government would never consider them legal kin just because the father’s name is not listed on the child’s certificate.

Its not like fudging your weight on your drivers license. You know the truth and your in control of the information and if cornered you can say it was your weight at one point. There will be no point in time where the child had no father because it would mean the child does not exist. Leaving the father’s name off a birth certificate in my mind should mean that the child’s father is not identified and that nobody knows who he is. It should not possibly mean that someone is withholding the information in an effort to protect someone whether its the child the mother the father or some fly by night social or step parent swooping down to scoop the kid up with a woosh of intended parenthood.

If you don’t believe in the random reassignment of parenthood otherwise, and I am fairly sure that you don’t, then you cannot make exceptions to the rule when the truth is not what you want it to be. The truth is the truth and when people claim that the truth is not in the child’s best interests or the mother’s best interests I have to question either their logic or their sincerety; the truth does not operate for anyone’s interests – it exists in spite of our feellings one way or the other about it. I think its dangerous for our government to ever set a prescident where there truth can be obscured for the good of the people because it gives the State too much power over the population. Print the truth and manage the situation to the best of our ability, protecting the Mother and the child from harm. Its not the government’s job to help people pretend that something did not happen. Its not the governments job to make it go away.

I don’t understand why Jenkins wants the child. Isabella is going to be so traumatized from the way she has lived and from the lies that Miller has told her, she’s not (and never will be) the same little girl. Miller has killed the little girl that she was. If I were Jenkins, I would mourn her disappearance as a death and move on with my life. Hopefully, Miller will one day be caught and imprisoned for many years for thumbing her nose at our legal system. But, while Jenkins has my sympathy, she should move on. The little girl she knew and loved is gone.

I understand what you’re saying but I think people respond differently in this sort of situation. I think some people do make the choice you describe but then you don’t end up with a legal case and all the attendant publicity so it is sort of invisible. David Goldman didn’t give up either, but I know of at least one instance in which a mother did give up–not for exactly the reasons you say but to spare her child the anguish of being the center of a bitter struggle. That’s an honorable course, I think, but so is persisting.

I can understand why Goldman and Jenkins persist. Children are resilient and it might be hard to feel like you gave up a chance to help a child you love have the chance to remake her/his life in a healthier manner.

What evidence do you have that Isabella is traumatized or is living an unhealthy lifestyle? What kind of lies has Miller told Isabella that you know of?
My understanding of the case is that other than her absconscion, no one was challenging Miller’s parental fitness.
do you have other information?

She was snatched from one of her parents and is living on the run. I hardly find that to be a healthy lifestyle.

Do you seriously believe that Miller has told her anything positive about Jenkins when she asks about her other mother?

This poor child is being forced to live on the run because of Mother Miller’s selfish desires. I feel nothing but sympathy for this child and Jenkins.

Miller deserves to spend many years in prison for disobeying a court order. Miller opted to have a baby with Jenkins. Miller created this situation. Miller deserves to be punished to the fullest extent of the law. You don’t get a do-over once you decide to parent with another person.

I was under the impression Isabella likely didn’t remember Jenkins much or at all to the age she was and the time that had passed by? So she probably doesn’t feel like she is missing a parent. It was going to be hard on her either way. The current situation is awful for her, I will not dispute that, but a change of custody to someone she hadn’t lived with since she was an infant and saw a handful of times post-breakup at that point also would have been very hard.

Tony, the child isn’t going to ask about “her other mother.” (She will however ask about her father, but that’s another story.) And the explanation is pretty darn simple- “I was living with another woman when you were a baby and she wants to be your mother.”
Probably simpler that the explaining you have to do to your kids about their mother.

omg tony I am reading and did actually say that Jenkins should give up on the little girl because the girl is so traumatized she is not the same child????? I can’t believe you would say that. Of course I disagree with you about the trauma issue, as well as jenkins parenthood, but the idea that a parent should give up on a child because the child may not be the cute little trophy we want to show off to our friends and relatives????

that’s exactly why Goldman and Jenkins are in a different situation. What opportunity does Jenkins have to re-make the child’s life in a healthier manner? It’s not as if her absence would even noticed by the child. She became a parenthood by a legal technicality alone, not because of any genetic or social relationship with the child.
Goldman’s absence, however, would definitely be known and felt by his son, although the extent can not be predicted. Yes, Julie, it’s is because he is the genetic parent. And that makes a difference for most humans. You may not be one of those humans but that doesn’t make your denial any more sensible for the rest of society.

There’s also the fact that Goldman’s son had a relationship with him at least until the age of 4 and a half or so (old enough to remember) while Miller and Jenkins broke up while Isabella was a baby. I don’t really see the benefit to the child of legally recognizing a parent-child relationship based only a relationship between that ended when the child was too young to remember a thing.. And if this was a male-female couple that couldn’t cooperate, I’d wonder the same thing. It seems to me the cost to the child of enforcing a relationship with someone the child shares neither a genetic nor emotional bond with is just too high.

that should say “I don’t really see the benefit to the child of legally recognizing a parent-child relationship based only a relationship between adults that ended when the child was too young to remember a thing.”

Julie you have often said that you support the day-to-day reality of people’s lives. Yet in this case you think a legal technicality trumps all. That a child would actually be better off, “healthier” with someone who is a parent strictly because of a legal technicality.
I am beginning to suspect that it is not so much the day to day realities that concern you, but a war against genetic parenthood, because genetic parenthood simply isn’t convenient to small classes of people.

I wonder that too. I am afraid to comment on typical news sites on this story because of the political angle (being accused of being for/against “the Christians” or “the gays,” or so it goes on sites like that), but I really don’t see the benefit to the child of changing custody in circumstances like this. It may suck for Jenkins but the child psychologically probably doesn’t see her as a “parent” at all. There isn’t a genetic relationship. Her mother and Jenkins broke up when she was an infant. She saw her a handful of times after that, and the last time was 4 years ago. And I’f say the same thing if this was a straight couple that used a surrogate or sperm donor. How does the benefit of establishing a relationship with a person the child has no bond (neither genetic nor emotional) with outweight the trauma of having to live away from a biological parent they have been with their entire life, to be cared for and tucked into bed at night by someone who, in every way that matters to a child, is a stranger?

No–I really am concerned with the day-to-day realities. (And of course, genetic linkage may or may not be part of those. This is why a focus on the day-to-day realities leads to results that sometimes conflict with genetic parenthood.)

The problem here (and I just wrote this in a very tardy reply to another comment) is about how you fit the day-to-day reality focus with the need for people to respect law. Jenkins is a legal parent. Miller has acted unlawfully for the specific purpose of disrupting Jenkins relationship with the child. She has succeeded in doing so. Now what do we do?

I’ve written about this before. It’s clear that a focus on only the day-to-day realities would lead to Miller getting to keep the child. She’s created that reality. But I can we let people who violate court orders win if they violate them long enough? What does that mean about court orders?

The general view (and I guess I share this view) is that honoring court orders is a more important general principle than the well-being of an individual child. Thus, even though you can make an argument here that the individual child should be left where she is, you have this larger concern (systemic, really) that overrides that. Same is true in the Goldman case. David Goldman and Lisa Jenkins win (in my view) for the same reason–they have clear legal rights and the fact that those rights were violated for a long period of time doesn’t make the rights go away.

I’d say the same thing if you switch Jenkins and Miller’s roles, by the way. But it wouldn’t be because Miller has a genetic relationship with the child–it would be because in that hypothetical, Jenkins would have defied the law and I don’t think we can allow people to do that and (if they hide long enough) win.

I think I’d say the same thing but slightly differently: Sometimes the solution to a custody problem (like this one) may not serve the immediate best interests of the child involved in the case. (One detail here is that we really do not know what’s in Isabella’s best interests–it’s not at all clear to me that it is in her best interests to live underground in Nicaragua. But that’s a different point than the one you made.)

As I’ve said, I think that is because there are other values at play (like general respect for the legal system and judicial orders) that are seen to be equally or even more important. It’s quite possible to consider changing the law so that the BIC of the specific child is always of paramount importance.

But think about where that can lead to: Adults (legal parents or not) who snatch children in violation of court orders and then do a decent job raising them for a long enough time should get to keep the child, because the pre-existing social relationship of parent/child has been disrupted. This is not an incentive we usually want to create nor a result we are willing to embrace.

You might get around this by how you define BIC. You could say it is always in the BIC to be raised by a genetic parent. But that will bring us back to one of those core disagreements and it really exposes the uncertainty and vagueness of the whole idea of BIC.

But I do not mean to deny your point. We can certainly think about how to redefine the law so that the BIC is always paramount.

This case has taken an even more alarming twist now that the American Family Association’s Bryan Fischer is advocating that this case is proof as to why people need to kidnap the children of gay parents. Very frightening. I shudder to think how many people will take this advice to heart.

Blog Stats

386,796 hits

About the Blog

Family law is shaped by and helps shape our worlds. It changes all the time, propelled by the diversity of our families and our experiences. It matters (and should matter) to many of us. Whether or not we think about the law, we are subject to it. That's why I started this blog.

Many topics in family law fascinate me. I hope to create a forum for intelligent and sustained discussion of some of the more compelling family law issues. I have started here with questions of parentage--who are the parents of a child. It's not as simple as it seems. But it is a terribly important one. By building slowly, case by case, story by story, I hope to slowly develop a rich and layered understanding of what it means to be a parent, one that perhaps, some day, the law can learn from.

My hope is that many of you will join me in the project and that the whole will be greater than the sum of the parts.